Journalists could be victims of Melbourne's crime underworld

It may be the messenger rather than the criminals who end up casualties of Melbourne's recent gangland killings.

Turning common sense on its head, Premier Steve Bracks vented his displeasure about the leaking of a secret police document. His target was not only the presumably corrupt police who leaked it but the ABC journalists who published a news story about it.

Unfortunately for the two identified in the document, police informers Terry Hodson and his wife, it was released to Melbourne's criminal milieu before it reached the desks of the ABC journalists. The Hodsons paid for this piece of police indiscretion with their lives. This, not those who revealed the incident, should be the focus of government angst.

Now Premier Bracks is searching for a scapegoat and the Victorian Ombudsman has briefed Tony Fitzgerald QC to investigate how the document found its way into Melbourne's murky and murderous underworld. Troubling for the media though, the Ombudsman has the power to compel the ABC journalists to disclose their confidential source - the person who leaked the document to them.

The issue may yet become a re-run of previous instances in which journalists refuse to disclose sources even though they risk jail for doing so if a judge finds them in contempt of court.

Time for a shield law

The incident reinforces the need for a "shield law" to protect journalists who choose not to disclose their sources to the courts and official enquiries.

Legal protection certainly has a place in a liberal democracy, given the news media's "fourth estate" role. Despite its failings and shortcomings, the news media should receive protection even though those charged with introducing it - our elected politicians - are sometimes victims of the same media.

A shield law has been on the agenda for years. In his column for the Australian Press Council, Professor David Flint wrote in 1996 that a 1981 UK shield law gave qualified protection for journalists in that country - the proviso being that the information provided by a source had no bearing on national security such that their exposure would be in the interest of justice. Despite this, in 1996 a UK journalist was forced to take his case for protection to Brussels under the European Convention on Human Rights, which found in his favour.

Australian journalists enjoy little by way of legal protection when it comes to protecting their sources, however in NSW in 1997 the state government gave judges the option of excluding evidence derived from confidential communications between professionals and their clients.

According to the Australian Press Council

 ...the court must not order that confidential communication be revealed if there is any likelihood of harm and the nature of this harm outweighs the desirability of having the evidence released. This provision has been of little use to journalists who are bound either by their union's code of ethics or their employer's codes of conduct to respect all confidences.

 ... journalists usually will get a sympathetic hearing in most courts during a defamation action where a plaintiff seeks to discover the identity of sources at interlocutory stages of the proceedings (the Newspaper Rule). There is no protection at trial, however, if a court rules that a journalist should reveal a source.

Journalists generally are unable to claim privilege to avoid disclosing their source of information if they are called before courts, Royal Commissions or parliamentary inquiries. To keep the confidence in such a circumstance the journalist will have to commit contempt of court and suffer the consequences which may include a fine or even a jail term.

Protecting sources promotes accountability

The protection of confidential sources is critical to exposing government and corporate mismanagement and corruption.

To deny whitleblowers - those with the courage to reveal the misdoings of institutions - the protection they are due is profoundly anti-democratic because it discourages citizens disclosing wrongdoing. When this happens, corruption and mismanagement can become part of an organisation's culture, weakening the institutions and weakening the wider society.

Australia has not dealt kindly with whistleblowers who have gone public, despite their role in increasing the accountability of institutions. This is what makes the protection of confidential sources necessary. They can disclose wrongdoing but not be revealed to the courts and to those who would take retribution.

When legal defence demands the identity of a journalist's source it risks exposing the source to punitive action. Exposure can ruin lives and, on occasion, put them at risk. Even when confidence is maintained, a witch hunt is likely to ensue during which the source may be uncovered. That an organisation might do this is understandable, however the exercise speaks plenty about the organisation's commitment to openess and honesty.

Protecting unethical journalists

There remains a risk that unscrupulous journalists would use a shield law unethically. Without disclosure of sources, how can courts and enquiries determine the veracity of allegations? How can the public have confidence that information reportedly supplied by a confidential source is what it seems?

Substantiation of allegations made by an anonymous source may occur during a court case or enquiry. Journalists choosing not to reveal sources might search for other substantiating evidence either through information or lines of enquiry supplied by their anonymous source or through other avenues, if available.

Preferably, journalists would ask a source who wants anonymity to provide documentary evidence to support their allegations or, at the very least, to provide written evidence to be read by the journalist in their presence. This would help validate the source's claims and reassure the journalist that the material is valid.

Without sighting documentary evidence it could be difficult to determine whether a journalist was reporting honestly on information supplied in confidence or whether they were fabricating information for their own purposes. Credibility in such circumstances would depend on the reputation of the media organisation the journalist was reporting for and on the reputation of the journalist themselves. An absence of documentary evidence could cast suspicion were the information to be disputed.

In some cases, journalists might disclose the identity of a source to their editor. Part of the editor's role is to make sure the facts stack up and that they are likely to be true before going to print or to air. A newspaper's legal advisor may also insist on hard evidence or other assurance as to the likely truth of the claims of an undisclosed source. Yet even here there is room for misdoing.

A shield law complements democracy

Despite the potential for journalistic deception, the case in favour of introducing a shield law surely outweighs that against. A shield law protecting journalists and their confidential sources engenders public confidence in the media and encourages whistleblowers to talk to journalists and expose wrongdoing. Society, and liberal democracy in the wider sense, is the better for this.

Let us hope that the leaked Victoria Police document does not claim more victims.